M.Y.EQBAL .J . - (1.) ln all these Writ petitions, the petitioners have challenged the vires of Section 11 of the Jharkhand Valued Added Tax Act, 2005 as ultra vires and violative of Article 301 read with Article 304(a) of the Constitution of India since the provision is not saved by Article 304(b) of the Constitution of India and further for a direction restraining the respondents from enforcement of the provisions of Section 11 of the Jharkhand Valued Added Tax Act, 2005 whereby entry tax is liable to be collected on entry of goods mentioned in Schedule -Ill of the said Act. The petitioners further sought a declaration that the entry tax is not compensatory in nature falling under Article 304 of the Constitution of India. As such, the said provision is violative of Article 301 of the Constitution of India.
(2.) THE respondents -State filed counter affidavit taking various defences available in law in support of their case that provisions of the Act is compensatory in nature and, therefore, not violative of the provisions of Article 301 and Article 304(b) of the Constitution of India. A supplementary counter affidavit was filed by the respondents on 17.3.2008. During the pendency of the writ applications, the respondents filed aforementioned supplementary counter affidavit stating inter alia that respondent NO.3 -Additional Commissioner of Commercial Taxes, Jharkhand vide letter dated 8.3.2007 wrote to the Ministry of Home Affairs, Government of India requesting for grant of post facto assent/approval of the President of India. In response thereof. the Home Ministry, Government of India, vide letter dated 11.8.2007 informed the department that the Value Added Tax Act, 2005 is valid and no post facto assent is to be required. Bihar Tax on Entry of Goods into Local Areas for Consumption, Use and Sale Therein Ordinance, 1993 was promulgated in February, 1993 by the Government of Bihar. By a subsequent notification dated 25th February, 1993 "entry tax" was introduced in the State of Bihar. After the lapse of the said Ordinance, another ordinance, namely, "Bihar Tax on Entry of Goods into Local Areas for Consumption, Use and Sale Therein Ordinance. 1993 was issued which was made an Act, namely. Bihar Tax on Entry of Goods into Local Areas for Consumption, Use and Sale Therein Act, 1993 The constitutional validity of the said Act was challenged in Patna High Court. The Division Bench of Patna High Court in the matter of State of Bihar VS. Bihar Chamber of Commerce [(1996)9 SCC 136] [: 1996(1) PLJR (SC)105] held that the charging provision contained in Section 3 of the Act was ultra vires to the Constitution of India. The State of Bihar then preferred an appeal before the Supreme Court. The said appeal was allowed and the constitutional validity of Sections 3 and 6 of the Act was upheld following the earlier decision of the Supreme Court in the case of Bhagatram Rajeev Kumar vs. CST [1995 Suppl. (1) SCC 673].
(3.) AFTER the creation of the State of Jharkhand, a fresh Ordinance was issued in 2001, namely, Jharkhand Tax on Entry of Goods into Local Areas for Consumption. Use and Sale Thereof (Amendment) Ordinance 2001. In 2005 the State of Jharkhand came with a new legislation. namely, Jharkhand Value Added Tax Act. 2005. By the said Act, the Bihar Tax on Entry of Goods into Local Areas for Consumption, Use and Sale Therein Act, 1993 as adopted in the State of Jharkhand was repealed. By the said Act. 2005 (VAT Act), the provision of imposition of entry tax on entry of goods into a local area in the State of Jharkhand has been introduced.;